Saturday, 20 June 2015

Marijuana Prohibition Is Unscientific, Unconstitutional and Unjust

Marijuana Prohibition Is Unscientific, Unconstitutional
and Unjust

by Jacob
Sullum

Marijuana
Prohibition Is Unscientific

A few days
before the House of Representatives passed a federal ban on marijuana in
June 1937,
the Republican minority leader, Bertrand Snell of New York, confessed,
“I do not know anything about the bill.” The Democratic majority leader, Sam
Rayburn of Texas, educated him. “It has something to do with something that is
called marihuana,” Rayburn said. “I believe it is a narcotic of some kind.”

Harry Anslinger (Image: California NORML)

That
exchange gives you a sense of how much thought Congress gave marijuana
prohibition before approving it. Legislators who had heard of the plant knew it
as the “killer
weed” described by Federal Bureau of Narcotics Commissioner Harry Anslinger,
who claimed
marijuana turned people into homicidal maniacs and called it “the most
violence-causing drug in the history of mankind.” Anslinger warned that
“marihuana causes white women to seek sexual relations with Negroes” and
estimated that half the violent crimes in areas occupied by “Mexicans, Greeks,
Turks, Filipinos, Spaniards, Latin Americans, and Negroes may be traced to the
use of marihuana.”

Given this
background, no one should pretend that marijuana prohibition was carefully
considered or that it was driven by science, as opposed to ignorance and blind
prejudice. It is hard to rationally explain why Congress, less than four years
after Americans had emphatically rejected alcohol prohibition, thought it was a
good idea to ban a recreational intoxicant that is considerably less dangerous.

It is
relatively easy, for example, to die from acute alcohol poisoning, since the
ratio of the lethal dose to the dose that gives you a nice buzz is about 10
to 1. According to the U.S. Centers for Disease Control and Prevention
(CDC), about 2,200 Americans die from alcohol
overdoses each year. By contrast, there has never been a documented human
death from a marijuana overdose. Based on extrapolations from animal
studies, the ratio of the drug’s lethal dose to its effective dose is something
like 40,000
to 1.

There is
also a big difference between marijuana and alcohol when it comes to the
long-term effects of excessive consumption. Alcoholics suffer gross
organ damage of a kind that is not seen even in the heaviest pot smokers,
affecting the liver, brain, pancreas, kidneys, and stomach. The CDC attributes
more than 38,000 deaths a year to three dozen chronic conditions caused or
aggravated by alcohol abuse.

Another
12,500 alcohol-related deaths in the CDC’s tally occur in traffic accidents,
and marijuana also has an advantage on that score. Although laboratory studies
indicate that marijuana can impair driving ability, its effects
are not nearly as dramatic as alcohol’s. In fact, marijuana’s impact on traffic
safety is so subtle that it is difficult to measure in the real world.

Last
February the National Highway Traffic Safety Administration (NHTSA) released
the results of “the first large-scale [crash risk] study in the United States
to include drugs other than alcohol,” which it described as “the most
precisely controlled study of its kind yet conducted.” The researchers found
that once the data were adjusted for confounding variables, cannabis
consumption was not associated with an increased probability of getting into an
accident.

That does
not mean stoned drivers never cause accidents. One challenge in assessing
the extent of the problem is that many of the drivers who test positive for
marijuana are not actually impaired, since traces of the drug can be detected
long after its effects wear off. That means marijuana-impaired drivers get
mixed in with drivers who happen to be cannabis consumers but are not under the
influence while on the road, which would tend to mask the drug’s role in
crashes. Still, alcohol is clearly a much bigger factor in traffic fatalities.

Jeff Michael of NHTSA (Image: House Oversight and
Government Reform Committee)

Last year,
during a congressional
hearing on the threat posed by stoned drivers, a NHTSA official was
asked how many traffic fatalities are caused by marijuana each year. “That’s
difficult to say,” replied Jeff Michael, NHTSA’s associate administrator for
research and program development. “We don’t have a precise estimate.” The most
he was willing to affirm was that the number is “probably not” zero.

The
likelihood of addiction is another way that marijuana looks less dangerous than
alcohol. Based on data
from the National Comorbidity Survey, about 15 percent of drinkers qualify as
“dependent” at some point in their lives, compared to 9 percent of cannabis
consumers. That difference may be especially significant given the link between
heavy alcohol consumption and premature death.

All told,
the CDC estimates
that alcohol causes 88,000 deaths a year in the United States. It has no
equivalent estimate for marijuana. We may reasonably assume, along with Jeff
Michael, that marijuana’s death toll is more than zero, if only because people
under the influence of cannabis occasionally have fatal accidents. But the lack
of a definitive answer highlights marijuana’s relative safety, which points to
a potentially important benefit of repealing prohibition: To the extent that
more pot smoking is accompanied by less drinking, an increase in cannabis
consumption could lead to a net reduction in drug-related disease and death.

The
comparison of alcohol and marijuana presents an obvious challenge to anyone who
thinks the government bans drugs because they are unacceptably dangerous. If
anything, that rationale suggests marijuana should be legal while alcohol
should be banned, rather than the reverse. Judging from this example, the
distinctions drawn by our drug laws have little, if anything, to do with what
science tells us about the relative hazards of different intoxicants.

Marijuana
Prohibition Is Unconstitutional

When dry
activists sought to ban alcoholic beverages, they went through the arduous process of
changing the Constitution, which prior to the ratification of the 18th
amendment in 1919 did not authorize Congress to prohibit the production
and sale of “intoxicating liquors.” When Congress banned marijuana in 1937, it
did so in the guise of the Marihuana
Tax Act , a revenue measure that authorized onerous regulations
ostensibly aimed at collecting taxes on production and distribution, with
severe penalties for noncompliance. But by the time marijuana prohibition was
incorporated into the Controlled
Substances Act of 1970, there was no need for such subterfuge. Instead
Congress relied on its constitutional authority to “regulate commerce with
foreign nations and among the several states.”

The Commerce
Clause, which was part of the original Constitution, did not change between
1937 and 1970. But beginning with a series of New Deal cases, the Supreme Court
stretched its meaning to accommodate pretty much anything Congress wanted to
do. In the 1942 case Wickard
v. Filburn, for example, the Court said the Commerce Clause
authorized punishment of an Ohio farmer for exceeding his government-imposed
wheat quota, even though the extra grain never left his farm, let alone the
state.

The Court
went even further in the 2005 case Gonzales
v. Raich, ruling that the federal government’s power to
regulate interstate commerce extends even to homegrown marijuana used for medical
purposes by a California patient in compliance with state law. That decision,
unlike Wickard,
applied not just to production but to mere possession. According to the Court,
the Commerce Clause encompasses the tiniest trace of marijuana in a cancer patient’s
drawer. “If Congress can regulate this under the Commerce Clause,” observed
dissenting Justice Clarence Thomas, “then it can regulate virtually
anything—and the Federal Government is no longer one of limited and enumerated
powers.”

Justice Clarence
Thomas (Photo by Alex Wong/Getty Images)

Many
conservatives who pay lip service to the Constitution and the system of
federalism it is supposed to protect nevertheless seem comfortable with this
audacious assertion of congressional authority. In fact, they complain
that the Obama administration is not using the Controlled Substances Act to
shut down the newly legal marijuana markets in Colorado and Washington. Either
they do not really believe in federalism or they cannot think straight when
they smell marijuana.

Marijuana
Prohibition Is Unjust

Even if
marijuana prohibition were consistent with science and the Constitution, it would be
inconsistent with basic principles of morality. It is patently unfair to treat
marijuana merchants like criminals while treating liquor dealers like
legitimate businessmen, especially in light of the two drugs’ relative hazards.
It is equally perverse to arrest cannabis consumers while leaving drinkers
unmolested.

Peaceful
activities such as growing a plant or selling its produce cannot justify the
violence that is required to enforce prohibition. In the name of stopping
people from getting high, police officers routinely commit acts that would be
universally recognized as assault, burglary, theft, kidnapping, and even murder
were it not for laws that draw arbitrary lines between psychoactive substances.

The main
justification for those laws is protecting people from their own bad decisions.
The hope is that prohibition will deter a certain number of people who
otherwise would not only try marijuana but become self-destructively attached
to it. Toward that end, police in the United States arrest hundreds of
thousands of people on marijuana charges each year—nearly
700,000 in 2013, the vast majority for simple possession. While most
of those marijuana offenders do not spend much time behind bars, about 40,000
people are serving sentences as
long as life for growing or distributing cannabis. And even if
marijuana offenders do not go to jail or prison, they still suffer public
humiliation, legal costs, inconvenience, lost jobs, and all the lasting ancillary
penalties of a criminal arrest.

Jeff Mizanskey, who is serving a life sentence in
Missouri for marijuana distribution (Image: YouTube)

Note that
the people bearing these costs are not, by and large, the people who receive
the purported benefits of prohibition. The person who, thanks to prohibition, never
becomes a pathetic pothead goes about his life undisturbed while other
people—people who never hurt him or anyone else—pay for the mistakes he avoids.
Even paternalists should be troubled by the distribution of these burdens.

I am not a
paternalist, because I do not believe the government should be in the business
of stopping us from hurting ourselves. I am with John Stuart
Mill on this:

The only
purpose for which power can be rightfully exercised over any member of a
civilised community, against his will, is to prevent harm to others. His own
good, either physical or moral, is not a sufficient warrant….Over himself, over
his own body and mind, the individual is sovereign.

Marijuana
prohibition, along with the rest of the war on drugs, is a flagrant violation
of this principle. It is a moral outrage built on a mountain of lies.

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